About Me

I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

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Saturday, February 04, 2006

NSA debate on C-SPAN

I'm going to be on C-SPAN's Washington Journal thisMonday morning, February 6, before the NSA hearings begin, from 7:45 to 8:30 a.m. I'll be debating the NSA eavesdropping issues with Bush supporter Professor Robert Turner of the University of Virginia.

Professor Turner served in various positions in the Reagan Administration, including as counsel to the President's Intelligence Oversight Board, and is currently a member of the Committee on the Present Danger, which lays in the belly of the neoconservative beast (Its Co-Chairs are John Kyl, Joe Lieberman, George Schultz and James Woolsey, and its other members include Midge Decter, Victor Davis Hanson, Newt Gingrich, Michael Horowitz, Clifford May, Daniel Pipes, Norman Podhoretz, Victoria Toensing and Ed Meese -- the list goes on and on like that, but you get the idea).

In December, Professor Turner wrote a widely celebrated (among Bush followers) Op-Ed in The Wall St. Journal praising the Administration's decision to eavesdrop in violation of FISA on the ground that Congress has no right to limit the President's eavesdropping activities. I'm definitely looking quite forward to the opportunity to have this discussion, particularly since Professor Turner has advocated a rather extreme (and pernicious) view of unchecked executive power. Here is a representative sampling from his Op-Ed:

For nearly 200 years it was understood by all three branches that intelligence collection--especially in wartime--was an exclusive presidential prerogative vested in the president by Article II, Section 1 of the Constitution. Washington, Madison, Jefferson, Hamilton, John Marshall and many others recognized that the grant of "executive power" to the president included control over intelligence gathering. It was not by chance that there was no provision for congressional oversight of intelligence matters in the National Security Act of 1947.

Space does not permit a discussion here of the congressional lawbreaking that took place in the wake of the Vietnam War. It is enough to observe that the Constitution is the highest law of the land, and when Congress attempts to usurp powers granted to the president, its members betray their oath of office. In certain cases, such as the War Powers Resolution and the Foreign Intelligence Surveillance Act, it might well have crossed that line. . . .

America is at war with a dangerous enemy. Since 9/11, the president, our intelligence services and our military forces have done a truly extraordinary job--taking the war to our enemies and keeping them from conducting a single attack within this country (so far). But we are still very much at risk, and those who seek partisan political advantage by portraying efforts to monitor communications between suspected foreign terrorists and (often unknown) Americans as being akin to Nixon's "enemies lists" are serving neither their party nor their country. The leakers of this sensitive national security activity and their Capitol Hill supporters seem determined to guarantee al Qaeda a secure communications channel into this country so long as they remember to include one sympathetic permanent resident alien not previously identified by NSA or the FBI as a foreign agent on their distribution list.

Our Constitution is the supreme law, and it cannot be amended by a simple statute like the FISA law. Every modern president and every court of appeals that has considered this issue has upheld the independent power of the president to collect foreign intelligence without a warrant. The Supreme Court may ultimately clarify the competing claims; but until then, the president is right to continue monitoring the communications of our nation's declared enemies, even when they elect to communicate with people within our country.

There certainly is a lot to chew on -- and debate -- there. Indeed, his Op-Ed recites virtually the full panoply of the most extreme pro-Bush law-breaking defenses. The good thing about the format for Washington Journal is that it's a 45-minute uninterrupted segment, so it provides ample opportunity for substantive debate, rather than exchanges of short, screeching sound-bites.

And there is a call-in segment, too, so anyone else who has questions for Professor Turner regarding his advocacy of a authoritarian, law-breaking strong presidency can also pose those questions to him directly.